Plea Bargaining Research Articles

Zeal Spillovers: The Adversarial Bias in Simulated Pre-Trial Decision Making

The adversarial legal procedure is one of the defining characteristics of Anglo-American law. Adversarialism is lauded for its capacity to discover the factual truth, which is said to be revealed by the clash between zealous advocates. This study further explores the proposition that adversarial contests trigger a bias that pervades adversarial actors’ judgments, beliefs, motivations, and emotions, and thus skews how they perceive and approach their cases. Specifically, we set out to extend prior research by testing whether the adversarial bias could spill over to skew simulated pre-trail prosecutorial tasks: the decision to seek an indictment and forming judgments in advance of the plea negotiation. In a simulation with lay people, we find that the adversarial bias does indeed skew pre-trial decisions. This result is troubling because the epistemic justification of adversarialism has little to contribute to these decisions, as indictment decisions are made unilaterally by prosecutors, and plea negotiations take place under heavily lopsided power and access to information. It follows that while adversarial zeal has little to contribute to pre-trial decisions, it can readily infest them with zeal. While ecological validity considerations abound, this study demonstrates the psychological plausibility that the adversarial bias results in heightened levels of indictment and stiffer punishments, thus highlighting prosecutors’ potential contribution to the exceptionally high rate of people sent to prison in the US.

Penerapan Konsep Plea Bargaining Dalam Sistem Peradilan Pidana Terpadu Di Indonesia

Introduction: The principle of simple, fast and low cost justice is a principle in the Indonesian judicial system that requires the implementation of law enforcement to be able to provide protection and legal certainty in the judicial process. The plea bargaining system is one of the alternatives that can be used to overcome the burden of cases in court and realize the principle of simple, fast and low cost justice as a principle in the Indonesian criminal justice system optimally.Purposes of the Research: The purpose of this paper is to review and analyze the application of the plea bargaining system and the obstacles in the application of the plea bargaining system in the Indonesian justice system.Methods of the Research: The method used in this writing is normative juridical with a statutory approach, comparative approach, and concept approach.Results of the Research: Based on this paper, it can be concluded that plea bargaining system is a part of criminal justice system that is developed and maintained by many countries up to now, both countries with common law system and countries with civil law system. Plea bargaining system is a system that has not been recognized in the Indonesian judicial system, however, this system can be a solution to the problem of accumulation of cases in the courts, the implementation process must be carried out comprehensively, and adjustments need to be made to the Indonesian criminal justice system so that it can be implemented and implemented optimally and effectively.

The Forms of Acceleration of Justice

Plea bargaining is one of the most important institutions of criminal law not only in Georgia but also in other countries. The said procedural institution was also introduced into the Georgian system and has not lost its relevance since its introduction. It is also obvious that this procedural-legal institution is the cornerstone of Anglo-American law, and it is impossible to discuss it outside the context of the said legal system. Our research includes an in-depth study of the plea bargaining as a basic legal institution. In particular, the formation and development of plea bargaining in England and America is presented. Among them, the case law in the part of plea bargaining is discussed. The article presents the process of implementing plea bargaining in the countries of continental Europe. The work contains a comparative legal analysis of different countries and the Georgian system. Historically, there are two types of bargaining: explicit and implied. Explicit plea bargaining is an open offer from a judge to a victim during a trial or a judge’s advice to a defense attorney about the “best reasonable solution”. The rules of expedited justice in the countries of the continental European system (Germany, France, Italy) are characterized by certain features, the features of which are discussed in this article. The study reveals the main essence of plea bargaining in Georgia, the practice of its use, and the main problems. The author’s conclusions and recommendations are presented at the end of the study.

Plea Bargaining as a Reform in Criminal Procedure Law: An Analysis of Article 199 of the Draft Criminal Procedure Code

The criminal justice process in Indonesia is characterized by lengthy proceedings, significant costs, and a growing prison population, highlighting the need for new policies to address these challenges. The adoption of the plea-bargaining concept, prevalent in common law jurisdictions, offers a potential solution for the Indonesian criminal justice system. Article 199 of the Draft Law on Criminal Procedure introduces a similar concept, allowing defendants who admit guilt to crimes punishable by no more than seven years in prison to have their cases transferred to a shorter trial process. This normative juridical research employed both statutory and conceptual analyses to evaluate the relevance of plea bargaining in the Indonesian context. It aims to assess whether the plea bargaining provisions in Article 199 of the Draft Criminal Procedure Code align with the principles of simplicity, speed, and cost-effectiveness, and whether they conform to Pancasila, the foundational ideology of Indonesia.

Application of criminal law measures as a legal institution

The article highlights the issues of application of criminal law measures as an independent regulatory and legal institution which has a cross-sectoral nature. This institute is complex, since it includes two sub-institutes – criminal law and criminal procedure, and is characterized by its subject matter and method of legal regulation, and is intended to regulate social relations which arose in connection with the introduction in Ukraine of the institute of quasi-criminal liability of legal entities for the fulfillment of Ukraine’s international obligations. The author suggests that a regulatory legal institution should be set out in a standardized manner in various legal acts. Unlike the criminal law sub-institution of application of criminal law measures, criminal procedural rules are «scattered» throughout the text of the Code of Criminal Procedure of Ukraine, which impedes the effective application of the relevant rules. The analysis of the few verdicts that have imposed criminal legal measures on legal entities indicates that, given both the normative shortcomings in the presentation of criminal procedural rules of the institution of application of criminal legal measures and the actual lack of training of interested parties (investigators, prosecutors, judges, lawyers) in specialized educational institutions, this leads to shortcomings in law enforcement and the actual ineffectiveness of the institution as a whole. The author finds that when applying criminal law measures to a legal entity, courts made the following mistakes: they did so independently, without following the procedure for initiating proceedings against a legal entity regulated by criminal procedure legislation; in criminal proceedings against an individual, they approved a plea agreement with a criminal law measure against a legal entity when it was prohibited to do so. The author proposes to conduct specialized training on criminal law and criminal procedural features of quasi-criminal liability of legal entities in Ukraine for investigators, prosecutors, attorneys and judges.

Gross Negligence as an Element of Involuntary Manslaughter

Introduction: legislation holding parents criminally responsible for the delinquent acts of their children faces with the difficulty of meeting the requisite legal thresholds, such as proving willful intent or gross negligence on the part of the parent. Typically, a person who contributes to the neglect or delinquency of a minor is guilty only of a misdemeanor. Purpose: address important questions about the negligence of the parents and their potential criminal liability for manslaughter. Results: James and Jennifer Crumbley’s conviction doesn’t fit into any of the categories of traditional parental responsibility laws and is instead a first-of-its-kind extension of the manslaughter statute. The liability for the lethal acts of others involves proof of the existence of felonious intent plus a causal relationship between the felony and the death. Under the current common law, the core of complicity lies in intentionally encouraging or assisting the principal offender. Conclusions: the Crumbley verdict may forge a precedent for being gradually applied as a tool for prosecutors to pressure suspects into plea bargains. They “lessen the mens rea needed to establish guilt,” and thus parents are held responsible despite not intending to allow the child to commit the crime.

Guilt and Guilty Pleas

Plea bargaining figures heavily in criminal justice systems in the United States and, increasingly, around the globe. Conventional wisdom holds that plea bargaining generates efficiency gains for all parties, while sorting the guilty from the innocent. We build a series of formal models to consider the relationship between a defendant’s guilt and her likelihood of pleading guilty. In an inversion of the conventional wisdom, we show that under a range of empirically plausible scenarios—for example, if criminals are more risk-seeking than the wrongfully accused, or if prosecutors derive a career benefit from trial wins—the innocent are more likely than the guilty to plea bargain.

The Need for the Institution of a Pretrial Cooperation Agreement (Pretrial Plea Agreement) in the Russian Criminal Procedure

The Need for the Institution of a Pretrial Cooperation Agreement (Pretrial Plea Agreement) in the Russian Criminal Procedure

EDITORIAL: Gaza, genocide and media: Will journalism survive?

30th Anniversary Edition of Pacific Journalism Review: When editor Philip Cass and I, as founding editor, started planning for this 30th anniversary edition of Pacific Journalism Review, we wanted a theme that would fit such an important milestone. At the time when we celebrated the second decade of the journal’s critical inquiry at Auckland University of Technology with a conference in 2014, our theme was ‘Political journalism in the Asia Pacific’, and our mood about the mediascape in the region was far more positive than it is today (Duffield, 2015). Three years later, we marked the 10th anniversary of the Pacific Media Centre, with a conference and a rather gloomier ‘Journalism under duress’ slogan. The PJR cover then featured a gruesome corpse at the height of Rodrigo Duterte’s callous and bloodthirsty ‘war on drugs’—and on media—in the Philippines. Three years later again the PMC itself had been closed in spite of its success. EDITORIAL NOTE: After the editorial of Pacific Journalism Review and the lead article in this edition (Vol 30, No 1&2) about the fate of WikiLeaks founder Julian Assange were printed, the Australian journalist was set free and he arrived back in Australia after a plea bargain. The winner of his country’s Walkley Award for journalism excellence, Assange was freed by a US federal court in Saipan, Northern Mariana Islands, on 26 June 2024 after a plea bargain to plead guilty to one charge of violating the US Espionage Act and the judge sentenced him to 62 months, jail time already served in the UK on remand. His 14-year struggle for freedom was over, but his lawyers say they will press for a full US presidential pardon.

The impact of legal representation in Israeli traffic courts: Addressing selection bias and generalizability problems

AbstractThis study investigates the impact of legal representation on the process and outcomes of legal proceedings, focusing on Israeli traffic courts dealing with simple traffic offenses. It finds that legal representation significantly increased defendants' prospects of obtaining plea bargains and of avoiding demerits points. However, legally represented defendants were also exposed to higher fines compared to self‐represented defendants. Since points are typically the primary concern for defendants, we contend that legal representation improved case outcomes, overall. Considering the simplicity of the process, the minimal legal expertise required, and the low stakes involved, the representation effect was unexpectedly robust. This effect may potentially be even stronger in more complex cases and where the stakes are higher. Unlike previous observational studies, this study reduces the risks associated with selection bias and produces findings that are more credible and potentially generalizable to other contexts.

International experience in the application of agreements in criminal proceedings

Further study of the institution of “agreements in criminal proceedings” is appropriate taking into account three main factors: analysis of historical experience, generalization of the practice of applying current legislation and study of foreign experience: criminal procedural legislation and the practice of its application. The institution of criminal proceedings based on agreements is a successful “borrowing” of the legislative experience of other states and belongs to special judicial procedures. Perceived positively by society, as the possibility of an agreement between the suspect or the accused and the prosecutor or the victim provided by law has become a common alternative way of resolving criminal legal conflicts. In the legislation of the European Union, the procedures for making a court decision on the basis of a plea agreement are not completely identical to the practice in the legislation of the United States: the initiative of the parties in resolving the issues of prosecution is transformed by the impossibility of changing the accusation by agreement, and the “passive position” of the court in deciding the procedure for resolving the criminal case proceedings is its limited activity. The special procedure for passing a court decision on the basis of a plea agreement has a procedural legal nature, similar to continental conciliation procedures: they are based on the consent of the parties, but are not related to the conclusion of the agreement by the parties as a process of negotiations regarding its terms, formalization of the agreements reached in a certain way. The subject of agreements is agreement with the charges presented, or the punishment proposed by the prosecutor, or the simplification of the court procedure for consideration of criminal proceedings. Under the influence of the European procedural culture and practice, the agreement in the US legislation on the recognition of guilt acquires new characteristics: the court often shows wide boundaries for consideration (discretion) in imposing punishment; takes an active part in the discussion of the terms of the conclusion of the agreement by the parties; as a result of the prosecutor’s unlimited powers to make decisions regarding the conclusion of the agreement, the latter becomes similar not to a bilateral agreement between the accused and the prosecutor after adversarial negotiations, but to a unilateral determination by the prosecutor of the degree of guilt of the accused and the appropriate punishment for him.

The Punitive Exacerbation: A Fallacy in the Conception of the Social State of Law

This article aims to highlight the obstacles faced by negotiation methods within the reward system and restorative justice contemplated in Law 906 of 2004 of Colombia. It acknowledges that the possibility of achieving outcomes within figures such as plea bargains and pre-agreements is discarded as a negotiated way out of the criminal case due to increasing prohibitions, coincidentally for the most committed crimes in Colombia territory. This turns the criminal justice system into a scenario of inexorable oral trials, for which the burdens in capacity, institutionalization, and functionality are not given. Through these lines, we also seek to understand the importance of the emergence of a legal figure, in this case, a trial system, and the challenges it faces from the producing country to provide a post-implementation assessment. Perhaps from there, possible solutions can be derived, especially if a justice reform is proposed for the current year, 2024, with its main focus on the proper and swift performance of the trial system as a commitment to the opportune management of ius puniendi and criminal policy.

War on Palestine: How the fates of Gaza and Julian Assange are sealed together

Commentary: Were they being properly reported, two critically important court hearings in February 2024, in London and The Hague, would expose the US ‘rules-based order’ as a hollow sham. Both posed globe-spanning threats to our most basic freedoms. Neither received more than perfunctory coverage in Western establishment media such as the BBC. One was a week-long hearing by the International Court of Justice (ICJ) over a United Nations General Assembly request for an advisory opinion over Israel’s illegal occupation of the Palestinian territories and the other was a last-ditch appeal of WikiLeaks founder Julian Assange against efforts by the United States to extradite him so that he can be locked away for the rest of his life. EDITORIAL NOTE: After the editorial of Pacific Journalism Review and the lead article in this edition (Vol 30, No 1&2) about the fate of WikiLeaks founder Julian Assange were printed, the Australian journalist was set free and he arrived back in Australia after a plea bargain. The winner of his country’s Walkley Award for journalism excellence, Assange was freed by a US federal court in Saipan, Northern Mariana Islands, on 26 June 2024 after a plea bargain to plead guilty to one charge of violating the US Espionage Act and the judge sentenced him to 62 months, jail time already served in the UK on remand. His 14-year struggle for freedom was over, but his lawyers say they will press for a full US presidential pardon.

War on Palestine: How the fates of Gaza and Julian Assange are sealed together

Commentary: Were they being properly reported, two critically important court hearings in February 2024, in London and The Hague, would expose the US ‘rules-based order’ as a hollow sham. Both posed globe-spanning threats to our most basic freedoms. Neither received more than perfunctory coverage in Western establishment media such as the BBC. One was a week-long hearing by the International Court of Justice (ICJ) over a United Nations General Assembly request for an advisory opinion over Israel’s illegal occupation of the Palestinian territories and the other was a last-ditch appeal of WikiLeaks founder Julian Assange against efforts by the United States to extradite him so that he can be locked away for the rest of his life. EDITORIAL NOTE: After the editorial of Pacific Journalism Review and the lead article in this edition (Vol 30, No 1&2) about the fate of WikiLeaks founder Julian Assange were printed, the Australian journalist was set free and he arrived back in Australia after a plea bargain. The winner of his country’s Walkley Award for journalism excellence, Assange was freed by a US federal court in Saipan, Northern Mariana Islands, on 26 June 2024 after a plea bargain to plead guilty to one charge of violating the US Espionage Act and the judge sentenced him to 62 months, jail time already served in the UK on remand. His 14-year struggle for freedom was over, but his lawyers say they will press for a full US presidential pardon.

Sentence Bargaining under the Guidelines

Sentence Bargaining under the Guidelines

When Pleas Precede Evidence

In most U.S. jurisdictions, prosecutors are not required to clearly establish a reasonable basis for guilt prior to offering defendants plea deals. We apply Bayesian analyses, which are uniquely suited to illuminate the impact of prior probability of guilt on the informativeness of a particular outcome (i.e., a guilty plea), to demonstrate the risks of plea offers that precede evidence. Our primary prediction was that lower prior probabilities of guilt would coincide with a significantly higher risk­­ for false guilty pleas. We incorporated data from Wilford, Sutherland et al. (2021) into a Bayesian analysis allowing us to model the expected diagnosticity of plea acceptance across the full range of prior probability of guilt. Our analysis indicated that, as predicted, when plea offers are accepted at lower prior probabilities of guilt, the probability that a plea is actually false is significantly higher than when prior probabilities of guilt are higher. In other words, there is a trade-off between prior probability of guilt and information gain. For instance, in our analysis, when prior probability of guilt was 50%, posterior probability of guilt (after a plea) was 77.8%; when prior probability of guilt was 80%, posterior probability of guilt was 93.3%. Our results clearly indicate the importance of ensuring that there is a reasonable basis for guilt before a plea deal is extended. In the absence of shared discovery, no such reasonable basis can be established. Further, these results illustrate the additional insights gained from applying a Bayesian approach to plea-decision contexts.

On Expanding the Range of Victims of Coercion To Testify

Building a state governed by the rule of law involves improving the mechanism for combating encroachments on justice ensuring observance of human and civil rights and freedoms. In changing criminology realities, in the focus of discussion are the ways to increase the effectiveness of guaranteesaimed to observe the rights and freedoms of persons involved in criminal proceedings, also with the help of criminal legal means. The paper presents the criminal law analysis of the signs of a victim of coercion to testify (Article 302 of the Criminal Code of the Russian Federation). The subject of the study is the set of definitions used by the legislator to describe the signs of a victim of coercion to testify, as well as the provisions of criminal procedure legislation regulating the legal status of participants in criminal proceedings protected by the norm under consideration. The analysis of the stated problems is based on the legal views of the highest judicial authorities, with regard to historical, legal and doctrinal aspects. An interdisciplinary approach made it possible to identify the peculiarities of the legal status of persons classified by the legislator as victims of coercion to testify. The paper analyzes the legal status of the person whose criminal case was severed from the rest as a result of a plea bargain with him, as well as the person against whom proceedings to take compulsory measures of medical nature are conducted. The study focuses on the applicant, the eyewitness, the victim of the crime and parties of no procedural status but possessing important criminal information. The current criminal legislation does not provide for bringing the offenders to justice in case of undue influence against parties with an informal procedural status in the course of criminal proceedings. The paper substantiates the need to classify these parties as victims of coercion to testify. There is a discrepancy in the terminology of criminal and criminal procedure laws, and imbalance in providing punishment according to general and special rules. The undertaken research proposes to improve the legal and clerical condition of the current version of Article 302 of the Criminal Code of the Russian Federation in terms of clarifying the range of victims, and to review the penalty with regard to the general rule.

Combating Corruption in Nigeria: A Case Study of Public Prosecution under Buhari’s Administration (2015-2023)

The menace of corruption in Nigeria has lingered on for years, the conscious awareness towards this malady has gained prominence over the years, to the extent that the main opposition party, All Progressive Congress (APC), ascended to power in the 2015 General Elections, emerging victorious at the polls with anti-corruption campaign, echoed by the change mantra. This study dissected the much-anticipated fight against corruption in the eight years of Muhammadu Buhari’s APC led administration; it unravels that the principle The menace of corruption in Nigeria has lingered on for years, the conscious awareness towards this malady has gained prominence over the years, to the extent that the main opposition party, All Progressive Congress (APC), ascended to power in the 2015 General Elections, emerging victorious at the polls with anti-corruption campaign, echoed by the change mantra. This study dissected the much-anticipated fight against corruption in the eight years of Muhammadu Buhari’s APC led administration; it unravels that the principle of rotation of power with its patron-client network and identity politics are enablers of corruption in Nigeria. Similarly, it is posited that plea bargain constitutes a huge hindrance to the successful eradication of corruption in Nigeria, just as the poor reward system for career public office holders constitutes a challenge to the fight against corruption in Nigeria. The study concluded that the Buhari administration’s fight against corruption, although had Nigerians filled with hopes from inception, could not achieve much in the end with the anti-corruption Caesar (Ibrahim Magu) removed in what appears as a power play. We recommend the establishment of institutional mechanisms to prevent corruption, review of reward system for public officers, creation of credit system to facilitate citizens’ immediate access to meeting their needs, prosecution of civil/public servants who are complicit in corrupt practices, and compensation of whistleblowers, among other measures.

Assertive community treatment as an alternative to incarceration for American pretrial detainees

In the United States and elsewhere around the world, people with serious mental illness (SMI) are overrepresented in the criminal justice system. Clinical interventions to divert such individuals out of correctional settings, including Assertive Community Treatment (ACT), have been shown to reduce rates of criminal justice recidivism when modified to allow for the use of court sanctions to encourage treatment adherence. However, these interventions are noted to be underutilized as alternative to incarceration (ATI) programs.This paper summarizes the results of a retrospective cohort study conducted in a New York State forensic psychiatric hospital of 87 pretrial detainees admitted after being found incompetent to stand trial between January 2019 and January 2022. Of these, 49 patients were referred to an ACT team that served as an ATI program. The study outcomes noted that patients referred to this ACT team were 20% less likely to remain in pretrial detention than those that were not. Moreover, patients referred to the ACT program were also 34% more likely to be granted an ATI plea bargain in the community that did not involve serving a prison term. These results suggest that pretrial detainees with SMI are more likely to be granted an ATI program that offers more intensive treatment services such as ACT, due to the capability of such programs to also provide more intensive outreach and community supervision than traditional outpatient mental health service providers.

An Empirical Study of Publicly Appointed and Privately Retained Defense Lawyers in Plea Bargaining: The Chinese Experience

An Empirical Study of Publicly Appointed and Privately Retained Defense Lawyers in Plea Bargaining: The Chinese Experience